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transfers under Section 2056 of the Internal Revenue Code".
Cal. Probate Code sec. 21520(a) (West 1991). If an
instrument contains a marital deduction gift, the
California Probate Code provides a liberal construction
to allow a marital deduction, as follows:
(a) The provisions of the instrument,
including any power, duty, or discre-
tionary authority given to a fiduciary,
shall be construed to comply with the
marital deduction provisions of the
Internal Revenue Code.
(b) The fiduciary shall not take any
action or have any power that impairs
the deduction as applied to the marital
deduction gift. [Cal. Probate Code
sec. 21522(a) and (b) (West 1991).]
These special rules do not apply unless there is sufficient
evidence to find that the decedent intended the gift to
qualify for the marital deduction. See Estate of Heim v.
Commissioner, supra at 1329.
In this case, as mentioned above, the language of the
decedent's 1986 will gives Mrs. Rapp an interest in only so
much of the income from the trust as is paid "for her
proper health, education and support" in the absolute
discretion of the cotrustees. This language is clear and
unambiguous and cannot be construed to give Mrs. Rapp the
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